Dethroning Congress

America First Has a Playbook

President Trump and his allies have made clear their goal of transforming our imperfect democracy into an autocratic regime. Not even two months in, they have made an astonishing amount of progress towards that goal. Nonetheless, should Congress stand firm, the Trump regime is sufficiently weak that it has not yet consolidated power. This will not last long, however, and the impending appropriations fight is the terrain on which the contest for power will be fought.

The majority of this week's newsletter will recount the Trumpian plan to reshape American democracy into an America First regime, and then turn to the state of play in Congress.

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How Trump Plans to Dethrone Congress

The America First crowd hasn't exactly been quiet about their intentions, although newspaper coverage has been incomplete. You can read the alt-right's plans to reshape government into the America First mold, published by the Trump aligned Claremont Institute, in a two-part essay entitled What it will take to break the Deep State. I encourage everyone to read it, but what follows are the highlights.

The three pillars of their plans include:

• "Target the bureaucracy's weakness" by "cutting off funding for whole offices, bureaus, programs, and activities."
  

• "Abandon regular order" because Congress is insufficiently pliant to a takeover. "Even with Republican control of Congress, there remain too many establishmentarians in the party who are allies of the bureaucracy (e.g., appropriators) or cling to comforting myths about a 'non-partisan,' 'professional,' or 'expert' civil service."
  

• "Embrace irregular order." In other words, end the rule of law.

What does irregular order constitute? The willful violation of the constitution and the law to supplant our system of laws, impose rule by diktat, transform the bureaucracy into henchmen, and allow allies to reap the spoils. Techniques include deliberately creating bottlenecks in agency work by centralizing power in the hands of the top political appointees, establishing America First cells inside each agency populated by political appointees to implement America First policies, and ignoring Congress's powers to determine the flow of money.

Additional techniques of control include starving the media by making use of state social media to bypass the press, freezing out journalists generally (see what's happening to the White House press corps and the Associated Press), minimizing stakeholder engagement by refusing to meet with delegations from the public unless it is legally required (e.g., the end of federal advisory committees), and ignoring or otherwise limit Congress.

How will they undermine Congress? "Interaction with Congress should be strictly minimized and strictly transactional…. This centralization also is necessary to implement the most important rule of congressional relations: everything is a negotiation, and nothing is free." How is that implemented?

Even for “routine” oversight requests, only the agency head is available, and only for a formal hearing. Scheduling the hearing should be difficult (agency heads are busy people, of course), and the agency head should demand action on administration desires (e.g., advancing nominees) before agreeing to a date. Then, the terms of the hearing (especially its length and the scope of permissible questions) likewise are subject to negotiation. All of this will infuriate members of Congress, but the most they will do in response is to spend the hearing berating the agency head for the benefit of the cameras and their fundraising efforts. Sticks and stones.

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How America First Would Take Control of the Money

Part II of the essay, available here, presages the appropriations fight that is coming to a head this week in Congress. Spending power is Congress's most important power. Don't forget that the English king's need to raise funds from the nobles led to the strengthening of parliament and ultimately the creation of a strong legislature in the U.K. American revolutionaries, mindful of these lessons, deliberately put these powers in Congress's hands. Trump and America First seeks to roll this back.

The three America First approaches to centralizing power in Trump's hands are shutdown, constitutional impoundment, and soft impoundment.

Their first approach is shutdown. Shutdown is to be welcomed, in their view, because the administration can use "the existing 'lapse of appropriations' procedures to shape negotiations with Congress." The White House would alter shutdown procedures to keep open the parts of government that align with America First and close the rest – all in violation of law and existing processes that determine who is essential. They would seek to minimize closures that irritate the public, but only to avoid an immediate backlash. In addition, they would issue reductions in force, i.e., mass firings, by ignoring existing law that distinguish between administrative furloughs and shutdown furloughs.

How does shutdown end? "The administration would need to sustain the shutdown as long as possible because Congress likely will not be ready to negotiate seriously until its allies in the bureaucracy feel directly and personally threatened." For how long? "The administration should seek to continue the shutdown at least through day 91, when hundreds of thousands of feds would be laid off, reshaping the bureaucracy according to the administration’s views of what is essential and presenting Congress with a fait accompli." As you can imagine, this would be a disaster for our democracy, our economy, and for the world.

The end goal is that anything not kept open during the shutdown "should be permanently de-authorized." Even moreso, they wish to permanently alter the power dynamic around government funding where the White House, and not Congress, makes spending decisions.

Their second approach is "control via apportionment," i.e., impoundment. The administration would refuse to spend funds required by law and ignore the statutes that say otherwise. We are seeing this play out now. The America First game plan is to ignore the law and constitution and argue in court that violations of law is "a non-justiciable political opinion." Even if they ultimately lose in court, the point is to use the non-funding to permanently change policies in ways that cannot be reversed. (Think, for example, Ukraine being overwhelmed by Russia for lack of weapons, or rural hospitals being closed because of lack of funds.)

Their third approach is "soft impoundment," where the White House uses its allies in the bureaucracy to do everything it can to ignore legislative intent for where funds are supposed to go and moving authority to spend funds to the top of the agency where they will go unexercised. Agencies are in no rush to expend funds, and when requests come in, they will create a massive bureaucratic process – requiring civil servants to create extensive and unnecessary documentation to answer unnecessary questions – to delay funding and ultimately result in the appropriation expiring. The purpose is to cause a cash crunch for fund recipients and have them cease to exist. Goodbye, Meals-on-Wheels.

Congress will naturally complain, and here the advice is to play "hardball." "The agency head need only stand his ground and stick to his talking points. Congress cannot make him re-delegate his authority to subordinate officials. Even if its members become so frustrated they resume old-school earmarking for certain recipients, that would be a victory because it acquiesces to the administration’s position about the authority and discretion of agency heads."

On this point, Trump's chief of staff Susan Wiles told senators "they should contact her directly with their concerns over funding freezes and reductions in forces pushed by Musk." Can you imagine Congress going hat in hand to ask President Trump to dispense a favor for what Congress has asserted as its right for more than 200 years?

As for the courts, the plan is to leave existing obligations alone and simply not request funds the next time around. It is the author's contention that the courts "cannot compel the agency head to re-delegate his authority to subordinate officials" even despite the direction of Congress.

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The State of Play This Week

Scheduled for House floor consideration this week is "additional legislation related to FY 25 funding," i.e., some form of a resolution to address the expiration of appropriations on March 14th. Will the House try to move a short term continuing resolution, a "full year" continuing resolution, or, bless their hearts, the actual appropriations bills?

A united Republican conference could move any of the three in the House, at least in theory, although different factions of the Republican party will have problems with each of the approaches. And, of course, 60 senators must vote in favor, so seven Democrats would have to go along.

A short term CR is anathema to some Republicans who view it as kicking the can down the road. There's no way Republicans can go through the regular appropriations process because they are unwilling to cross Trump. Will they include the traditional "no starts" provision that would keep the power to decide whether to stop or start programs with Congress instead of "delegating" it to Trump?

Republicans likely will try to sell a full year continuing resolution. But, looking at the text and accompanying promotional release, it's a trap for the gullible. Skimming the 99 page document, it appears to reshape the government and delegate Congressional power to Trump. I must assume that Republican appropriators and other "normies" are hoping against hope that the Democrats kill it.

Republicans are desperately trying to sell the idea that Democrats are shutting down the government. You'll see that message on state social media and elevated by the less credible journalists. Can anyone doubt that Pres. Trump has already shut down the government, from the mass firings and cancelling of agencies and programs? The question really is whether the non-America First Republicans want to reopen the government and protect Congress's constitutional powers.

But remember what I wrote above: the America First plan is to shut down the government for days, weeks, and months until Congress caves and moves the power of the purse into their hands. They're going to do it by using the pain of the shutdown on "Democratic states" so that Dems give in. The reality, of course, is that we're all going to suffer greatly. They'll also try to create facts-on-the-ground so that a lot of the people and programs cannot come back.

That is why, in my opinion, we're at a turning point. It's also why the GOP's campaign arm is urging Republican members not to have town halls. Complaining constituents would create pressure on Republicans to not tank the economy, fire thousands of veterans, and so on. They're already trying to discredit them by claiming their paid actors and other nonsense that you can only believe if you're trapped within the MAGA filter bubble.

The smartest move for the pro-democracy faction in Congress is to hold tight and refrain from voting for any legislation unless: (1) it contains the "no starts" language that prevents the White House from starting new program or activities (i.e. America First priorities); (2) it contains the guardrails against a White House power grab that I wrote about a few weeks ago; (3) it contains appropriations language that severely limits funding for what the White House and its America First allies in the agencies can do; (4) and it contains reasonable policy and funding levels. While there can be real disagreement about what constitutes #4, there can be no dissent for including #1-3.

Meanwhile, top Republicans in Congress are desperate to turn over the reins of government to Pres. Trump and Musk, at least according to POLITICO, and that's going to be a huge point of contention. The only way a shutdown can end and we still have a democracy is a majority in Congress are willing to assert their will.

Democrats, however, would have to hang together to open this possibility. This statement from Sen. Mark Warner, published in Punchbowl, is enough to give anyone agita. "I think the implications of a full-year CR are really horrible, especially for the military. And for a state like ours, a shutdown is even worse." Perhaps he will feel differently when Pres. Trump unilaterally cuts the DOD.

Remember the recommendations I summarized above from America First plan: "The administration should seek to continue the shutdown at least through day 91, when hundreds of thousands of feds would be laid off, reshaping the bureaucracy according to the administration’s views of what is essential and presenting Congress with a fait accompli."

Democrats' fear of getting blamed for a government shutdown and inherent desire by some to meet any unreasonable demand halfway must give way to the realization that if they do not stand strong now, they and the rest of the Congress's pro-democracy wing will simply become politically irrelevant. They will instantiate their worst fears and have no power to do anything about it. Or, to put it in terms they will understand, to the extent free and fair elections continue in the future, they will get challenged in their primaries and be out of jobs. As Ben Franklin once said, "we must all hang together or we will all hang separately."

I understand that it's getting harder and harder to speak up. People are afraid, and rightly so. Those of us who believe in open government – as in "open for business" and "open to the public" – are running out of oxygen. Ironically, those with the greatest power in our political system are the ones least likely to speak up. If there's any chance of getting out of this mess, it's going to take solidarity. It's now or never.

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The Other Kind of Open Government

OGFAC. On February 25th the Trump administration cancelled the Open Government Federal Advisory Committee, where I served as chair. Open government is not a partisan issue and our expert members were drawn from across the political system, across the country, and from government and civil society alike. None of us got paid for the work and yet we worked very hard to advise the government on what should be included in its 6th Open Government National Action Plan.

FOIA. Friday evening, one of our committee members was fired from his job. Bobby Talebian served as the head of the Justice Department's Office of Information Policy, which is responsible for FOIA inside the DOJ as well as overseeing FOIA across the government. He is a non-partisan civil servant, like many of the thousands of others targeted for dismissal by a regime that wants corrupt subservience over competence.

The FY 26 appropriations process will get started any day now, surely, so a dozen organizations wrote to a House appropriations subcommittee to request they hold a public witness day. This is an opportunity for the public to testify in person before the committee. In the past, these days have sparked interest in the subcommittees who hold the hearings as well as generated good ideas that have been implemented.

Calendar. The next two weeks have several major open government events, and next week is Sunshine Week, which is focused on FOIA and open government. This Tuesday, the Congressional Data Task Force will hold its quarterly stakeholder meeting between the Legislative branch and civil society. There are a ton of events scheduled for next week's Sunshine Week, but I would imagine the federal government will back out or cancel most of its commitments. Sunshine Fest is March 19-20 here in Washington, D.C. Traditionally congressional committees hold oversight hearings on open government during the week, but none have been scheduled this year.

Transparency and OpenGov. At the intersection of transparency and open government, on March 14th Bussola Tech will hold a panel discussion on AI and Legislative Drafting, including some civil servants from the House of Representatives. The Congressional Research Service has given notice that it will finally, at long last, begin publishing CRS reports publicly as HTML, something civil society has requested for more than a decade. Thank you to appropriators for directing them to make this upgrade.

Jobs. Noted technologist Derek Willis has created a new tool that transforms job announcements in the House from their current technology-unfriendly PDF format to something that can be treated as data. I'd love to see all Legislative branch job openings published as structured data by the relevant office or agency and centralized into a common portal. (Yes, they're not all on USAJobs.) More from me on this here.

About jobs. I've been playing with the very clever Hill Climbers website, which (with a paid subscription) provides real insights into the current and historical salaries for staffers with different job responsibilities. It shows staffing levels, apples-to-apples comparisons for job roles, and identifies folks with multiple roles. I know the House provides some data about job pay to select staffers, but this tool can provide insight for everyone and is very cleverly built.

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Legislative Support Agencies and Offices

CBO turned 50. Congratulations to our friends with the green eyeshades. CBO Director Swagel published a blogpost celebrating the occasion.

The Government Accountability Office says a review of alleged impoundment violations is a high priority for the agency.

Bill me. It's taking longer and longer for bills introduced in Congress to become publicly available, according to a Roll Call report. The Government Publishing Office says the increased volume of legislation is one cause, as is the meticulous review process to review the language for errors. Improved technology and changes in procedures could help address this lag. One aspect I'm worried about is Congress passing legislation before it's publicly available, especially in the Senate, which does not have an online document repository. We asked for fixes four years ago, but the problem persists.

The Committee on House Administration passed its oversight plan and held member day hearings. (Yes, I was there.) The only bipartisan request was for passage of legislation to limit members trading stocks, which would be welcome but is unlikely as leadership historically has quashed these efforts. My theory is they recruit the wealthy to run as a way around campaign finance law limitations, and making them limit their trading would make that recruitment harder.

Read the majority oversight plan and minority views here. No one asked me, but I wish they would: perhaps the committee will hold an opportunity for members of the public to testify?

JCP & JCL: The Joint Committee on the Library and the Joint Committee on Printing will hold their one (and likely only) meeting this Congress on March 11th, where they will organize. These committees used to be very important to overseeing the flow of information in our republic and had dozens of staffers. The JCP, for example, had a predominant role "with respect to the central tasks of satisfying the printing needs of Congress and the other branches of government, and making it possible for the broadest segment of the public to have direct access to government publications." But the Chadha Supreme Court decision, an Office of Legal Counsel opinion, and ultimately congressional Republicans – who defunded the shared staff on these two committees – left what are among the oldest committees in congress shorn of staff and power.

The House Admin Committee will stay active with a March 11th markup of legislation to provide funding to House committees, approve allocations for the paid committee internship program, approve franked mail allowances, and address several election matters. Amendments on any of these items are due by noon today.

Restricted report. The GAO announced it has published a new restricted report entitled "Missile Defense: DOD Faces Support and Coordination Challenges for the Defense of Guam." Staffers should contact GAO for a copy; the public can file a FOIA request.

Science and technology assessments? GAO released a report detailing its efforts to support Congress in matters of science and technology. This report, requested by appropriators, was generated in part because of significant congressional interest in the former Office of Technology Assessment and GAO's efforts to recreate some of those capabilities within a new team devoted to science and technology. If you are curious for more, read Zach Graves and my paper on building a modern congressional technology assessment office.

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ICYMI

The Niskanen Center published a good, brief history of how multiple factions have coexisted in the House at various points in history, with an emphasis on what a multi-party House of Representatives looks like.

Dodgy accounting by the administration to advance Pres. Trump's tax plan has drawn concerns from Ways and Means Chair Jason Smith. The Senate parliamentarian may recommend the rejection of the House's accounting method, which, per the reporting, "would make an extension of Trump’s 2017 tax cuts appear to cost nothing."

What the ROI of IGs? The Council of Inspectors General put out an analysis showing that over the last decade Inspectors General have identified $693 billion in potential savings. And yet, more than 13,000 recommendations have yet to be implemented. If you care about waste, fraud, and abuse, this is the place to start.

Better late than never. I published summaries of last fall's Congressional Hackathon and the Library of Congress Public Forum.

A renewed celebration of the new accessible drop-off, pick-up location for visitors to Capitol Hill.

Condolences to the family of Rep. Sylvester, who was just elected as a member of Congress and died at the age of 70.

Hampton Dellinger, the head of the Office of Special Counsel whom Trump tried to fire, surprisingly gave up his legal battle to retain his job. Why? The courts are too slow. "It would have literally taken a long time. It could have been up to a year…. And I didn't think I could — in any meaningful way — pick up the pieces a year from now, even if I prevailed." (This is not a good reason.)

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Carthago delenda est

The best way to describe my political beliefs is that I’m a progressive institutionalist. I believe in the power of society-wide collaboration to improve people’s lives and in the importance of designing our society to maximize people’s control over their own destinies while providing for their basic welfare. I am skeptical of concentrations of power, whether in government or in businesses. And I don’t like team sports, especially in politics.

It pains me to talk about our political parties like I have today. I believe in the power of ideas and I work to promote the best ideas wherever they come from. I support fluid factions and cherish enlightenment ideals. And yet, Trumpism is a knife that cuts away many illusions, including that of staying above the fray.

The kind of writing that I am engaging in, if effective, is increasingly dangerous. Those who are in much more powerful positions than me, such as universities, large foundations, legal associations, and politicians, are working to avoid attention. They mistakenly believe that he will not come for them. We are all in this together.